The above-captioned matter
was heard as a contested case on September 27, 2007, at which time the
complainants and the respondent appeared, stipulated to certain facts
and presented testimony, exhibits and argument on the complaint.

After consideration of the entire record, the
following facts are found and conclusions of law are reached:

1.It is found that by letter dated June 25, 2007, the complainants
requested complete copies of the personnel files of two officers of the Yale
University Police Department (“YUPD”).

2.It is found that by letter dated July 13, 2007, the respondent denied
the complainants’ request, stating, “Yale University and its police
department are private entities and are not subject to the Freedom of
Information (“FOI”) Act.”

3. It is found that by letter dated
June 25, 2007 and filed June 27, 2007, the complainants appealed to this
Commission, alleging that the respondent violated the FOI Act by failing to
provide copies of the records described in paragraph 1, above. It is
found that the complainants renewed their appeal with the filing of a
supplemental letter to the Commission on July 27, 2007.

4.It is found that the first issue before the Commission is whether the
respondent police department is a public agency, within the meaning of
§1-200(1)(B), G.S.

5.Section §1-200(1), G.S., provides, in relevant part:

“Public agency” or “agency” means: (A) Any executive, administrative or
legislative office of the state or any political subdivision of the state
and any state or town agency, any department, institution, bureau, board,
commission, authority or official of the state or of any city, town,
borough, municipal corporation, school district, regional district or other
district or other political subdivision of the state, including any
committee of, or created by, any such office, subdivision, agency,
department, institution, bureau, board, commission, authority or official …;
(B) Any person to the extent such person is deemed to be the functional
equivalent of a public agency pursuant to law… .”

6. The test for
determining whether an entity such as the respondent is the functional
equivalent of a public agency within the meaning of
§1-200(1)(B), G.S., is set
forth in Board of Trustees of Woodstock Academy v. FOI Commission,
181 Conn. 544 (1980), and consists of the following four criteria:

a.whether the entity performs a governmental function;

b.whether the entity was created by government;

c.the extent of government involvement or regulation; and

d.the level of government funding.

7.The Supreme Court in Connecticut Humane Society v. FOI Commission,
218 Conn. 757, 761 (1991), advocated a case-by-case application of the
Woodstock criteria, and established that all four of the foregoing
criteria are not necessary for a finding of “functional equivalence.”
Rather “[a]ll relevant factors are to be considered cumulatively, with no
single factor being essential or conclusive.”

8.With respect to whether the YUPD performs a government function, it
is found that P.A. 83-466, §3*,
gives to the YUPD “all the powers conferred upon municipal police
officers for the City of New Haven (emphasis added).” By contrast, it
is found that Yale University Department of Security, which is a different
organization than the YUPD, is comprised of security officers and management
personnel whose duties are limited to providing safety and security services
to Yale University facilities and the university community.

9. It is found that the YUPD’s police powers extend beyond the
boundaries of Yale University to the borders of the City of New Haven.
It is found that officers of the YUPD, like New Haven police officers and
all other Connecticut police officers, have the power to make felony arrests
anywhere within Connecticut. It is further found that the arrest of
the complainants’ client that precipitated the request for records described
in paragraph 1, above, did not occur on Yale University property.

10.It is found that the legislative history of P.A. 83-466, §3, reveals
lawmakers’ assumption that permitting the YUPD to take on the duties of the
New Haven police department would permit the municipal police department to
function more effectively.

11.It is found that the YUPD’s performance of law enforcement activities
is subject to governmental review. It is found that Yale University
police officers’ power to detain and arrest is subject to constitutional
protections. It is found that Yale University police officers
investigate and testify about their enforcement actions in court. It
is found that Yale University police officers must be re-certified on a
schedule set by the state, according to state standards. It is found
that the City of New Haven has the right to terminate its agreement with the
YUPD.

12.It is found that Connecticut Humane Society, supra, at
764, concluded that law enforcement is traditionally a function of the
government.

13.The respondent analogizes the YUPD to the organization under
consideration in Connecticut Humane Society, which held that the
organization was not a public agency despite its performance of the
governmental function of law enforcement.

14.It is found, however, that the Humane Society played a small role in
the state’s overall law enforcement activities directed at preventing the
cruel treatment of animals. Connecticut Humane Society,
supra, at 765. In contrast, the YUPD, by the express terms of
P.A. 83-466, §3, exercises full police powers, co-extensive with those of
the police department of the City of New Haven.

15. It is concluded, therefore, that the police power given to the YUPD,
with its accompanying power to detain and arrest, is a fundamental
governmental function that is capable of having a profound impact on private
individuals.

16.With respect to whether the YUPD was created by government, it is
found that the origin of the YUPD dates to 1894, when the New Haven Police
Department, a public agency within the meaning of §1-200(1)(A), G.S., agreed
to assign two of its police officers to patrol the Yale University campus to
quell sometimes violent disturbances between city residents and university
students. It is found that the two New Haven police officers
eventually resigned from the city force and were appointed as special
constables.

17.The Commission takes administrative notice of the YUPD website, which
implies that special constables were appointed to patrol Yale University
until the enactment, in 1983, of §3 of P.A. 83-466. It is unclear from
the record in this matter what the exact nature was of the relationship
between the YUPD and the New Haven Police Department in the intervening
years.

18.It is found that the Connecticut legislature formalized the
relationship between the New Haven Police Department and Yale University in
1983, by enacting §3 of P.A. 83-466, which permitted the City of New Haven
to “appoint persons designated by Yale University to act as Yale University
police officers.” It is found that the City of New Haven is a public
agency, within the meaning of §1-200(1)(A), G.S.

19.Accordingly, it is found that the YUPD was effectively created by the
City of New Haven in 1894, when the New Haven Police Department assigned two
police officers exclusively to patrol the Yale University campus. It
is further found that the subsequent appointment of special constables
assigned exclusively to patrol Yale University reinforced YUPD’s status as a
law enforcement agency distinct from, but dependent upon, the City of New
Haven. It is also found that the YUPD’s current jurisdiction and
authority was enabled by the State of Connecticut in 1983, through §3 of
P.A. 83-466.

20.With respect to the extent of government involvement or regulation,
it is found that Yale University is not required by state statute to have a
police force. It is also found that Yale University is not required by
state statute to perform any of the activities to which it agreed in a
Memorandum of Understanding between YUPD and the City of New Haven.

21.It is found that officers of the YUPD are employees of Yale
University. It is further found that the YUPD handles all disciplinary
matters concerning its employees and Yale University pays all compensation.
It is further found that YUPD officers are not members of a “paid police
department” for government retirement benefits or for purposes of receiving
workers’ compensation survivor benefits pursuant to §7-433b, G.S.

22.Nevertheless, it is found that YUPD’s disciplinary authority is
derived from the Memorandum of Understanding between the City of New Haven
and YUPD. It is further found that YUPD has control over disciplinary
matters only by agreement with the City of New Haven.

23.P.A. 83-466, §3, states that YUPD officers “shall be deemed for all
purposes to be employees and agents of Yale.” It is found that the
status of YUPD officers as employees and agents of Yale concerns personnel
matters and questions of immunity to suit. It is found that the status
of YUPD officers as employees and agents of Yale University for purposes of
private employment and liability issues does not determine, alone, whether
YUPD officers are employees of an entity that is the functional equivalent
of a public agency, within the meaning of the FOI Act and Woodstock,
supra. “The purpose of the FOIA is to provide public access to
governmental information while the purpose of the doctrine of sovereign
immunity is to protect the state from liability for private litigation that
may interfere with the functioning of state government and may impose fiscal
burdens on the state.” Gordon v. HNS Management Co., 272 Conn.
81, 106 ftn. 15 (2004).

24.It is found that P.A. 83-466, §3, also requires all police officers
of Yale University to be appointed by the City of New Haven, acting through
its board of police commissioners.

25.It is found that P.A. 83-466, §3, requires that any such officer
appointed by the City of New Haven to have qualified under §7-294d, G.S.,
which specifies certification and training requirements of municipal police
officers.

26.It is found that the legislative history of P.A. 83-466, §3,
indicates lawmakers’ intention not to relinquish control over Yale
University police officers’ training and certification.

27.It is found that P.A. 83-466, §3, expressly states that the YUPD is
“subject to such conditions as may be mutually agreed upon by the city of
New Haven, acting through its board of police commissioners, and Yale
University.” It is found that P.A. 83-466, §3, permits the City of New
Haven to exercise as much regulatory control or involvement as it deems
appropriate. It is found that if YUPD did not agree to the regulation
or involvement demanded by the City of New Haven, then the City of New Haven
would have the option, under P.A. 83-466, §3, to withdraw its regulated
delegation of police powers to the Yale University police force.

28.It is found that the City of New Haven, through its police
department, is involved in the “day-to-day” activities of the YUPD.
Domestic Violence Services v. FOI Commission, 47 Conn.App. 466, 478
(1998). It is found that Appendix A of the Memorandum of Understanding
details such day-to-day involvement. The New Haven Police Department
provides criminal investigation follow-up and supervision of major cases;
arrest and case file processing, crime scene services, assignment of case
numbers, prisoner transportation and detention; prisoner processing;
tracking and recordkeeping of court dispositions; property and evidence
services, juvenile offender services, joint patrols and other specialized
police services.

29.It is further found that the YUPD must adhere to federal and state
constitutional protections and civil rights laws in exercising its delegated
duties.

30.It is found, therefore, that the extent of government involvement and
regulation in the YUPD is significant.

31.With respect to the level of government funding, it is found that the
YUPD receives minimal direct government funding. It is found that its
annual operating budget of approximately $10.3 million is drawn almost
entirely from Yale University funds.

32.It is found, however, that the YUPD receives significant in-kind law
enforcement services and assistance from the City of New Haven and the
city’s police force.

33.It is also found that the YUPD benefits financially from its property
tax exempt status. It is found that the YUPD’s headquarters was
assessed at over $5.6 million in 2007.

34.It is found that, for at least the past three years, Yale University
has made annual payments of approximately $4.2 million to the City of New
Haven in lieu of taxes. It is found, however, that those payments are
wholly voluntary and within Yale University’s total discretion and control.

35.In his post-hearing brief, the respondent cites Connecticut Humane
Society to support his argument that federal tax-exempt status is not
the equivalent of government funding. It is found, however, that
Connecticut Humane Society did not address the organization’s tax status
in concluding that the group did not receive public funds.

36.It is found, moreover, that in Williams and the Manchester Journal
Inquirer v. Enfield Fire Chiefs Association, Docket # FIC2005-164, the
respondent’s federal tax-exempt status as a private charity was a factor in
the Commission’s finding that the respondent received government funding.

37.The respondent cites two other cases in support of his argument that
tax-exempt status is not the equivalent of government funding. It is
found, however, that only one of those cases concerns tax-exempt status.
Contrary to the respondent’s assertion, that case states, “In most respects
such financial support [from government funds] can be viewed the same as a
tax exemption.” Greenya v. George Washington University, 512
F.2d 556, 560 (D.C. Cir. 1975). The issue in Greenya was
whether tax-exempt status was sufficient government involvement to make an
otherwise private entity into a state actor for constitutional purposes.
It is found that in Greenya, the court found no difference in
analysis between tax-exempt status and financial support in concluding that
those factors, alone, are not substantial enough government involvement to
demonstrate state action to support the plaintiff’s constitutional claims.

38.It is concluded that the level of government funding of the YUPD is
significant, although the level of private funding is also significant.

39.Based on all the factors, especially the YUPD’s exercise of full
police powers throughout the City of New Haven, it is concluded that the
YUPD is a public agency within the meaning of §1-200(1)(B), G.S.

40.With respect to whether the records described in paragraph 1, above,
are subject to disclosure, §1-200(5), G.S., defines “public records or
files” as:

Any recorded data or information relating to the conduct of the public’s
business prepared, owned, used, received or retained by a public agency, …
whether such data or information be handwritten, typed, tape-recorded,
printed, photostated, photographed or recorded by any other method.

41.
Section 1-210(a), G.S., provides in relevant part that:

Except as otherwise provided by any federal law or state statute, all
records maintained or kept on file by any public agency, whether or not such
records are required by any law or by any rule or regulation, shall be
public records and every person shall have the right to . . . receive
a copy of such records in accordance with section 1-212.

42. Section 1-212(a), G.S., provides in
relevant part that “any person applying in writing shall receive, promptly
upon request, a plain or certified copy of any public record.”

43. It is found that the records described in
paragraph 1, above, are public records within the meaning of §§1-200(5) and
1-210(a), G.S.

44. It is found that the respondent does not
dispute that the copies of the records described in paragraph 1, above,
would not be exempt from disclosure under the FOI Act, were the Commission
to conclude that the respondent police department is a public agency within
the meaning of §1-200(1)(B), G.S.

45. Accordingly, it is concluded that the
respondent violated the FOI Act by failing to disclose the records described
in paragraph 1, above.

The following order by the Commission is hereby recommended on the basis of
the record concerning the above-captioned complaint:

1. The respondent shall forthwith provide a copy of the
records described in paragraph 1, above, to the complainants, free of
charge.

Approved by Order of the
Freedom of Information Commission at its regular meeting of February 13,
2008.

________________________________

Petrea A. Jones

Acting Clerk of the Commission

PURSUANT TO SECTION 4-180(c), G.S., THE FOLLOWING ARE
THE NAMES OF EACH PARTY AND THE MOST RECENT MAILING ADDRESS, PROVIDED TO THE
FREEDOM OF INFORMATION COMMISSION, OF THE PARTIES OR THEIR AUTHORIZED
REPRESENTATIVE.

THE PARTIES TO THIS CONTESTED CASE ARE:

Janet R. Perrotti and

State of Connecticut,

Office of the Public Defender

121 Elm Street

New Haven, CT 06510

Chief, Police Department

Yale University

c/o Robert M. Langer, Esq. and

Aaron S. Bayer, Esq.

Wiggin and Dana, LLP

One City Place

185 Asylum Street

Hartford, CT 06103-3402

___________________________________

Petrea A. Jones

Acting Clerk of the Commission

FIC/2007-370FD/paj/2/20/2008

* Section 3 of P.A. 83-466
is uncodified in the Connecticut General Statutes. It provides:
“The city of New Haven, acting through its board of police
commissioners, may appoint persons designated by Yale University to act
as Yale University police officers. Such officers having duly
qualified under section 7-294d of the general statutes, and having been
sworn, shall have all the powers conferred upon municipal police
officers for the city of New Haven. They shall be deemed for all
purposes to be agents and employees of Yale University, subject to such
conditions as may be mutually agreed upon by the city of New Haven,
acting through its board of police commissioners, and Yale University.”